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Judgment
RULE. Respondents waive service.
By the impugned order passed during execution of the decree under Order XXI of the Code of Civil Procedure (for short "CPC") by the learned Principal Senior Civil Judge, Navsari below Exh.23 in Special Execution Petition No. 13 of 2017, the plaintiff-decree holder was not permitted to make a recital in the sale deed that the possession of the suit property has been handed over to him; this petition is therefore preferred questioning the said order.
On consideration of rival contentions, it appears that the court below had taken hyper technical view in a case where the respondent-judgment debtor failed in his challenge to the decree right upto the Apex Court. In the decree there is a specific recital that upon payment of the contractual money, the vacant and peaceful possession of the property would be handed over to the petitioner decree- holder. The prayer in conformity with that recital in the decree was made in the execution petition. However, the court below was of the opinion that to seek the possession, different procedure will have to be followed by the petitioner. In the opinion of this court, such an hyper technical view would make the execution proceedings which is summary proceedings; cumbersome and will make the decree-holder run from pillar to post, for following avoidable procedure. Obviously the sale deed would be executed upon payment of the agreed price in presence of the parties. A sum of Rs.25.00 lacs deposited by the petitioner - original plaintiff in the trial court towards the modified sale consideration was always available to the judgment debtor for withdrawal and he would not have been prejudiced if the order executing the sale deed and handing over the possession simultaneously was passed. All other contentions were of no avail to the respondent even as he lost in the proceedings upto the Apex Court.
The impugned order in the above circumstances cannot be sustained. The same is quashed and set aside and the executing court will execute the decree strictly in terms of the proposed draft sale deed; without any alteration of its 16 and 17; in terms of the decree passed by the court earlier. The exercise shall be done within a period of two weeks from the date of receipt of writ of this court. The petition is thus allowed. Rule is made absolute with no order as to costs. Direct service is permitted.